STATE LIABILITY
Explain the concept of State Liability
• Introduction
State liability for the act of omission or commission committed by the servants of the State is not a static concept. It is governed by the written or the unwritten laws of the State. The liability of the State for the act of tortious acts committed by the servant of the State is known as the tortious liability of the State.
The State is held liable for the voluntary or involuntary acts of the servant of the state. The servant of the State can bring the matter before the Court of Law for the purpose of seeking non- liquidated damages.
This liability of the State is also a part of the law of tort. Like many other laws, the law of tort was brought to this country by the British in india. The law of tort is now varied as it is governed by various local laws and constitutional provisions.
The English maxim ‘the king can do no harm’ regarding the absolute inviolability of the Crown has never been accepted in India since ancient times. In the past, the Crown could never be sued in a tort case for the acts of his servants in their employment. However, this was not accepted during the time of the EI Company. The EIC came to India for the purpose of trade and gradually became the ruler of a large part of the country and made another part of the country under its rule.
Although it was not a State, it was a Delegation of the Crown, and its powers and scope of political power were gradually established by various Acts of the British Parliament over the years. In 1858, the British Crown directly assumed control of the country after an armed rebellion in India against British rule (referred to as the Sepoy mutiny in 1857) was put down.
The extent and scope of the Government’s vicarious liability in the absence of any statutory rules and contours depends upon the extent and extent of the power of the Government or of the Head of Government. In the pre-independence era, the scope of the State’s tortious liability and its immunity were subject to dispute before the existing Courts.
The State’s liability was contingent upon the nature of the conduct and the class of power in relation to which it was held, whether it was sovereign or not. The State’s sovereign powers were never defined and, in the absence of a clear distinction between the State’s sovereignty and non-so sovereignty, the courts of law often faced difficulties in settling the disputes.
The main line of defence of the State in cases relating to State liability was that the conduct complained of fell within the sphere of sovereignty of the State and, therefore, the State was not liable.
• Liability of administration in tort
State liability is the legal responsibility of the state for the actions of its servants in the event of an omission/ commission. It is governed by written and unwritten laws. It is not a fixed concept.
The State is held liable for the acts of its servant(s) in the event of acts of omission or commission. This is known as the State’s tortious liability.
This makes the State liable (voluntarily or involuntarily) for the acts of the servant(s) and puts the State’s liability before the Court in the event of a claim for non-litigious damages to those acts.
This is also a sub-section of the Law Of Torts. Law of Torts, like many other laws, was brought to this country by the British Crown Prosecution Service. It is now varied as it is governed by local law and constitutional provisions.
English law – In England, this outright indiscipline of the Crown was recognised on the basis of case-law. The administration relied on the principle ‘the King cannot be held liable under any circumstances’.
In the case of Tobin v R. in 1863, the court stated: “If the Crown were vulnerable to liability in the field of tort, this rule would appear to be meaningless”. The Crown proceeding Act was passed in 1947 which placed the Government in a position indistinguishable from that of a private person.
Indian Law – The maxim “the king cannot be held responsible under any circumstances” was never accepted in India. Absolute insensitivity of the government was not accepted in Indian legal system even before the Constitution came into being and in many cases the government was exposed to the intrigues of its employees.
Article 294 (4) of Constitution states that liability of the GOI or the GOI of the State may result ‘from the conclusion of a contract or other matter’. Article 12 defines the concept of state in the Indian Constitution. Article 300(1) settles the question of the degree of liability. It states that the liability of Government of India or the State Government is equal to that of the GOI and the Provision prior to the establishment of the Constitution.
Respondeat Superior (Let the principal be liable)
The doctrine of Responsible Superior (Respondent superior answer) was based on the assumption that the economic capacity of the subordinates was limited and the irresponsible conduct of the superior, such as the master or the employer, could be controlled.
The concept of Responsible Superior is derived from public policy in that it seeks to transfer the risks typically associated with it from the business to the employee or the employer. In the application of this doctrine, the employer and the superior are held liable for the negligence of an employee or the servant which occurs during employment.
However, it is necessary for there to be a relationship between a superior and a subordinate for the liability of the superior to fall on the subordinate.
The doctrine applies to the actions of subordinates in the course of their employment or agency under the direct authority of an employer or the implied authority of a master. There are two conditions of the doctrine:
• A true master-servant and employer-employee relationship.
• The tortious act of a servant and an employee must be one within the scope of his employment. The ‘scope of employment’ refers to the act performed under the express or implied authority of the superiors.
In the case of Automobiles Transport vs. Dewalal and ors, According to the judgment of the Rajasthan high court, there is always a presumption that the vehicle is being driven on the command of the driver or his authorized representative or servant and it is for the applicant to prove that there is no presumption and that the presumption is unjustified.
In the case of Smt. Savita Garg vs. The Director, National Heart Institute, Basically, the Supreme Court said that the hospital was the one who was responsible for what happened to the agent, which was one of his doctors. If the court and the person suing them can’t prove that the hospital didn’t do anything wrong or that they acted with good care and caution, then they’re the ones who should be held responsible.
Qui-Facit per Alium Facit per se (He who acts through another does it himself).
This maxim is a fundamental legal principle of agency law and is often used when discussing the employer’s liability for the actions of the employee in the context of vicarious liability.
The maxim states that by employing servants, the master is required to perform the duties of the servant and is held liable for their actions just as he is held liable for his own actions. In the case of the role represented by the agent, this concept is in fact or factually such that the role is regarded as the agent’s own work. Anything that the principal can do for himself can be done by an agent. The only exception to this maxim is personal acts of nature.
In H.E. Nasser Abdulla Hussain vs. Dy. City a tenet of law canonized the dictum: “Qui facit per alium facit per se”. It was held in the case of Ballavdas Agarwala vs. Shri J. C. Chakravarty, that the sections vicariously fastened the responsibility on the masters for the acts of the servants.
In K.T.M.S. Mohd. And Anr vs. Union Of India, it was held that the Indian Income-tax Act is a self-contained Code, which is exhaustive of the matters dealt with and its provisions portray an intention to depart from the common rule of Qui facit per alium facit per se.
Compensation by State
Tort is defined in Chambers Dictionary as follows: “Tort is any wrongful act or injury that does not result from a contract and for which there is no remedy other than compensation or damages. A tort occurs either when there is an infringement of no contract or when there is a breach of civil duty.” In other words, it is a civil wrong for which the only remedy is damages. The basic requirement for the execution of a tort is the breach of an obligation towards people. However, it would be incorrect to say that all civil errors are tort.
Section 70 of the Indian Contract Act, 1872 states that if an individual is doing a lawful service for another person, or delivering something to him for which the other person benefits, then the latter is required to pay compensation to the former or to return the thing to the other person. If the conditions of Section 70 are fulfilled, then the state would be required to compensate for the work done or the services rendered.
Section 70 of the Indian Contract Act, 1872 does not exist on the basis of a perpetual contract between the two parties. Instead, it is based on a quaternation basis or a restitution basis. This means that an individual who sells goods or provides non-free services to another person is required to recover the value of that service or product from the person who receives it. This obligation exists for the same reasons and does not seem to be an express agreement or contract.
If the agreement between the Contracting Party and the Government is declared invalid under Article 299 (1), the Contracting Party receiving the benefit under the agreement is required to restore the advantage or compensate the Contracting Party from whom it came into existence. For example, if a Contracting Party agrees with the Government to build the down payment that it received and the contract is declared void as the terms of Article 299 (1) are not fulfilled, the Government may recover the money advanced to the Contracting Party under the provisions of Section 65.
Section 65 of the Indian Contract Act, 1872 provides that in the event of an invalidity or invalidity of an agreement or contract, any Contracting Party receiving any benefit under the said agreement or contract shall be required to restore the benefit and compensate the.
A public official may be grossly negligent in his or her duties and it is difficult to get compensation from him or her. For the aggrieved party, the compensation is more significant than the punishment. The state must also be held accountable for the misdeeds of its employees.
In Bhim Singh v. the State of J&K, where the petitioner, a member of the Legislative Assembly, was arrested while he was travelling to Srinagar to attend the Legislative Assembly in gross violation of his constitutional rights under Article 21 and Article 22(2) of the Constitution, the court granted the petitioner monetary compensation of Rs. 50,000 by way of exemplary costs.
In Lucknow Development Authority v. M.K. Gupta, the Supreme Court observed that when the public servant causes injustice and pain to the common man mala fide, and capricious acts while discharging official duties, it makes the State liable to pay damages from public funds to the aggrieved individual. The State is constitutionally obliged to recover the reimbursement sum from the public servant in question.
•Pre-Constitution Judicial Decisions Relating to Vicarious Liability of State:
1. 1. Peninsular & Oriental Steam Navigation Company v Secretary – A consideration of the pre-Constitution cases of the Government’s liability in tort begins with the judgment of the Supreme Court of Calcutta in the case. P. & O. Steam Navigation Co. v. Secretary of State. The principle of this case holds that if any act was done in the exercise of sovereign functions, the East India Company or the State would not be liable. It drew quite a clear distinction between the sovereign and non-sovereign functions of the state for the purposes of vicarious liability of state. The facts of the matter are as follows. The plaintiff’s servant was travelling on the Calcutta highway in a carriage drawn by two horses owned by the plaintiff’s company. He was involved in an accident caused by the negligence of the Government’s servants. The plaintiff sought compensation for the loss suffered as a result of the accident from the Minister for India. The Supreme Court held that the doctrine of the “King can do no harm” applied to the East India company. The company would be held liable in such cases, and so would the Secretary of State.
This was based on section 65 of the Government of India Act of 1858, which connected the liability of the Minister of India with the liability of the EIC(East India Company). It distinguished between the functions of the state and non-state functions. If a public servant committed a tort in the discharge of the function of the state, no action would be taken against the State – for example, if the offence was committed while engaged in hostilities or if the property of the enemy was seized as a prize. This doctrine of immunity, for acts done in the exercise of sovereign functions, was applied by the Calcutta High Court in Nobin Chander Dey v. Secretary of State.
The plaintiff, in this case, contended that the Government had made a contract with him for the issue of a licence for the sale of Ganja and had committed a breach of the contract. The High Court held that upon the evidence, no breach of contract had been proved. Secondly, even if there was a contract, the act had been done in the exercise of sovereign power and was thus not actionable.
2.Secretary of State v. Hari Bhanji – In this case, the Madras High Court held that State immunity was confined to acts of the State. In the P & O Case, the ruling did not go beyond acts of State, while giving illustrations of situations where the immunity was available. The definition of Acts of State is as follows: Acts of State are acts of sovereign power inasmuch as they are professed to be the result of the application of municipal law; and They are the result of the use of powers granted by law; The mere fact that the act in question is the act of a sovereign power and cannot be carried out by a private person does not deprive the civil court of jurisdiction. The Madras judgment in Hari Bhanji holds that the Government may not be liable for acts connected with public safety, even though they are not acts of the State. This view was re-iterated in Ross v. Secretary of State.
The Allahabad High Court took a similar view in Kishanchand v. Secretary of State. However, in Secretary of Secretary of State v. Cockraft, making or repairing a military road was held to be a sovereign function and the Government was held not liable, for the negligence of its servants in the stacking of gravel on a road resulting in a carriage accident that injured the plaintiff.
• Post-Constitution Judicial Decisions Relating to Vicarious Liability of State 1. State of Rajasthan v. Vidyawati – The respondents filed a suit for the damages made by an employee (driver) of a State (Collector of Udaipur) and the case questioned whether the State was liable for the tortious act of its servant – The Court held that the liability of the State in respect of the tortious act by its servant within the scope of his employment and functioning as such was similar to that of any other employer. It was held in this case that the State should be as much liable for tort in respect of tortuous acts committed by its servant within the scope of his employment and functioning as such, as any other employer.
2. Kasturilal v. State of UP – The ruling in this case was given holding that the act, which gave rise to the present claim for damages, has been committed by the employee of the respondent during the course of its employment. Also, that employment belonged to a category of sovereign power. This removed any liability on the part of the state. In this case, the plaintiff had been arrested by the police officers on a suspicion of possessing stolen property. Upon investigation, a large quantity of gold was found and seized under the provisions of the Code of Criminal Procedure.
Ultimately, he was released, but the gold was not returned, as the Head Constable in charge of the maalkhana, where the said gold had been stored, had absconded with the gold. The plaintiff thereupon brought a suit against the State of UP for the return of the gold or alternatively, for damages for the loss caused to him. It was found by the courts below, that the concerned police officers had failed to take the requisite care of the gold seized from the plaintiff, as provided by the UP Police Regulations.
Judgment
The trial court decreed the suit, but the decree was reversed on appeal by the High Court. When the matter was taken to the Supreme Court, the court found, on an appreciation of the relevant evidence, that the police officers were negligent in dealing with the plaintiff’s property and also, that they had not complied with the provisions of the UP Police Regulations.
However, the Supreme Court rejected the plaintiff’s claim, on the ground that “the act of negligence was committed by the police officers while dealing with the property of Ralia Ram, which they had seized in the exercise of their statutory powers. The power to arrest a person, to search him and to seize property found with him, are powers conferred on the specified officers by statute and they are powers which can be properly categorized as sovereign powers. Hence the basis of the judgment in Kasturi Lal was two-fold – The act was done in the purported exercise of statutory power. Secondly, the act was done in the exercise of a sovereign function.
